On the Back-Channel That Wasn’t and U.S. National Security Interests

Jared Kushner, Senior Advisor to President Donald J. Trump, sits in on a meeting with Marine Corps Gen. Joseph F. Dunford Jr., chairman of the Joint Chiefs of Staff, at the Ministry of Defense in Baghdad, Iraq, April 3, 2017. (DoD Photo by Navy Petty Offi

During an October 2016 presidential debate, then-candidate Donald Trump rejected the joint Department of Homeland Security-Office of the Director of National Intelligence assessment that the Russian government conducted and encouraged activities intended to influence the 2016 election. At the time, I wrote with respect to his specific rejection of that assessment, as well as his general distrust of the U.S. Intelligence Community that "[i]f the only intelligence assessment he rejects is that which relates to Russia, then he has some explaining to do."

That an argument can be made that the President has taken several steps—including firing the FBI Director—to uncover, delay and/or derail the ongoing investigation(s).

And now, assuming that the recent reports by the Washington Post and New York Times are accurate, we know that Trump son-in-law and presidential senior advisor Jared Kushner discussed with Russian Ambassador Sergey Kislyak the concept of establishing a direct line of secure communication from the White House to the Kremlin, to be based out of Russian diplomatic facilities. The Washington Post report leaves the motivation for the potential back-channel vague, while the New York Times offers the explanation that the back-channel was intended to allow short-lived national security advisor Michael Flynn a direct channel to Russia to discuss Syria policy “and other security issues.”

So-called “back-channels” exist in diplomacy and intelligence. But back-channels in international relations do not need to be centralized in the White House or make use of private sector cut-outs. In normal times, foreign intelligence services are often the official government entities that operate in these back-channels. At a public conference held by the George Washington University Center for Cyber and Homeland Security this past fall, then-CIA Director John Brennan led a discussion with several of his counterparts, foreign government intelligence service leaders from the U.K., Afghanistan and Australia. The topic of the role that intelligence service back-channels play, came up. On that point, Brennan said:

It’s a balancing of openness, which, being here on this stage we are trying to engage with the public about our work. And at the same time, we have a responsibility to make sure we keep certain things secret, and using these very discreet, and secret intelligence channels, allows things to happen and to take place between governments that are out of the spotlight, that maybe the diplomatic realm is not able to have that same type of discretion.

So, the point of concern with the recent reporting, from a national security as well as public interest perspective, is not so much that the White House wanted to establish a back-channel: it’s who they wanted to establish the channel with (Russia), and how they wanted to the channel to operate (using Russian facilities and secure communications.)

Despite the President’s favorable campaign rhetoric towards Russia, intelligence experts do not paint an optimistic portrait of Russian activities as they relate to U.S. national security interests. Here is the U.S. government’s intelligence assessment of Russia as a cyber threat actor presented by current Director of National Intelligence Dan Coats, in his statement for the record on worldwide threats earlier this month:

Russia is a full-scope cyber actor that will remain a major threat to US Government, military, diplomatic, commercial, and critical infrastructure. Moscow has a highly advanced offensive cyber program, and in recent years, the Kremlin has assumed a more aggressive cyber posture. This aggressiveness was evident in Russia’s efforts to influence the 2016 US election, and we assess that only Russia's senior-most officials could have authorized the 2016 US election-focused data thefts and disclosures, based on the scope and sensitivity of the targets. Outside the United States, Russian actors have conducted damaging and disruptive cyberattacks, including on critical infrastructure networks. In some cases, Russian intelligence actors have masqueraded as third parties, hiding behind false online personas designed to cause the victim to misattribute the source of the attack. Russia has also leveraged cyberspace to seek to influence public opinion across Europe and Eurasia. We assess that Russian cyber operations will continue to target the United States and its allies to gather intelligence, support Russian decision making, conduct influence operations to support Russian military and political objectives, and prepare the cyber environment for future contingencies. [emphasis added]

The statement provided to Congress continued on Russian political, military and diplomatic objectives, more generally:

In 2017, Russia is likely to be more assertive in global affairs, more unpredictable in its approach to the United States, and more authoritarian in its approach to domestic politics. Emboldened by Moscow’s ability to affect battlefield dynamics in Syria and by the emergence of populist and more pro-Russian governments in Europe, President Vladimir Putin is likely to take proactive actions that advance Russia’s great power status.

Putin will seek to prevent any challenges to his rule in the runup to presidential elections scheduled for 2018. Putin remains popular at home, but low turnout in the Duma elections in 2016 and sustained economic hardship will probably enhance Putin’s concerns about his ability to maintain control. Putin is likely to continue to rely on repression, state control over media outlets, and harsh tactics to control the political elite and stifle public dissent.

Russia is likely to emerge from its two-year recession in 2017, but the prospects for a strong recovery are slim. Russia is likely to achieve 1.3 percent GDP growth in 2017 and 1.7 percent in 2018, according to commercial forecasts. Putin has long sought to avoid structural reforms that would weaken his control of the country and is unlikely to implement substantial reforms before the presidential elections. We assess that Russia will continue to look to leverage its military support to the Assad regime to drive a political settlement process in Syria on its terms.

Moscow has demonstrated that it can sustain a modest force at a high-operations tempo in a permissive, expeditionary setting while minimizing Russian casualties and economic costs.

Moscow is also likely to use Russia’s military intervention in Syria, in conjunction with efforts to capitalize on fears of a growing ISIS and extremist threat, to expand its role in the Middle East.

We assess that Moscow’s strategic objectives in Ukraine—maintaining long-term influence over Kyiv and frustrating Ukraine’s attempts to integrate into Western institutions—will remain unchanged in 2017.

Putin is likely to maintain pressure on Kyiv through multiple channels, including through Russia’s actions in eastern Ukraine, where Russia arms so-called “separatists. Moscow also seeks to undermine Ukraine’s fragile economic system and divided political situation to create opportunities to rebuild and consolidate Russian influence in Ukrainian decision making. Moscow will also seek to exploit Europe’s fissures and growing populist sentiment in an effort to thwart EU sanctions renewal, justify or at least obfuscate Russian actions in Ukraine and Syria, and weaken the attraction of Western integration for countries on Russia’s periphery. In particular, Russia is likely to sustain or increase its propaganda campaigns. Russia is likely to continue to financially and politically support populist and extremist parties to sow discord within European states and reduce popular support for the European Union.

The Kremlin is also likely to continue to see defense modernization as a top national priority even as the cumulative effect on the economy of low oil prices, sanctions, and systemic problems serves as a drag on key military goals. Moscow is pursuing a wide range of nuclear, conventional, and asymmetric capabilities designed to achieve qualitative parity with the United States. These capabilities will give Moscow more options to counter US forces and weapons systems. [emphasis added]

Given this professional judgement by the U.S. Intelligence Community, the notion that a senior transition team or White House official would either propose—or even be open to discussing—using Russian secure communications channels—is, to the say the least, unsettling, from the perspective of protecting and promoting U.S. national security interests. The notion is even more concerning if one considers that any such discussion would have to take place with an underlying premise being that the secure communications channel would have had to have been contemplated with an ancillary purpose of evading U.S. and close allies’ surveillance capabilities.

I am inclined to think that the FBI investigation into Russian influence (now led by the Special Counsel) has passed the point of FISA surveillance being useful as an investigative technique as it relates to any U.S. person subjects of the ongoing investigation(s). But, FISA’s definitions can still be instructive when it comes to trying to understand behavior that moves from acceptable international relations towards aiding and abetting a foreign nation:

First, Russia is, obviously, a foreign power as defined by 50 U.S.C. 1801(a)(1):

a foreign government or any component thereof, whether or not recognized by the United States[.]

Second, in the counterintelligence arena, an agent of a foreign power (who is also a U.S. person), is defined by 50 U.S.C 1801(b)(2). It is any person who:

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;...

or (E) knowingly aids or abets any person in the conduct of activities described in subparagraph [(A) or (B)]. [Note: I’ve left out sections b(2)(C) and (D), which are not relevant here.]

A key factor for a U.S. person to be found an agent of a foreign power is that there needs to be probable cause that the individual is knowingly engaged in the activity. In other words, the individual cannot be innocently taken advantage of by a foreign intelligence officer and then found by the Foreign Intelligence Surveillance Court to be an agent of a foreign power. If Flynn and Kushner were exploring the back-channel option of using Russian facilities in coordination or consultation with one another, that doesn’t make it any better; it makes it worse. It would mean that not one but two transition officials – both of whom went on to become senior White House officials – contemplated and pursued an activity that had the potential to facilitate a foreign power’s clandestine intelligence activities against the United States.

As examples, had this secure communications plan been implemented, Flynn and/or Kushner, if using the channel, could have potentially:

Communicated potentially classified or sensitive national intelligence information to the Russian government, including its intelligence service officials;

Revealed sensitive U.S. government or national intelligence information that the Russians otherwise would have had to try to collect through other clandestine means;

Provided valuable information about the thinking within the Trump White House and the inner workings of the U.S. Executive Branch; and/or

Compromised themselves in a way that—if they intended to keep the channel secret from U.S. intelligence services and/or the American public—would have provided Russian intelligence with information that could be used against them in the future.

There is plenty of public information available—and presumably classified information available to White House officials—that details Russian foreign intelligence efforts. If one knows that a secure communication line exists between U.S.-based diplomatic facilities and Moscow; one certainly knows why it exists. An effort on the part of an American government soon-to-be official to evade U.S. government intelligence collectors by using secure communications out of foreign facilities, comes awfully close to the line of aiding and abetting the clandestine intelligence activities of a foreign power that presumably take place out of those very facilities.

I do not raise these points lightly. Based on currently available public information, it is unclear how far the discussion ever got, and the actual activity itself appears to have never happened. But this is dangerous territory.

Carrie Cordero is Counsel at ZwillGen PLLC. She is an Adjunct Professor at Georgetown Law, where she previously served as Director of National Security Studies. She spent the first part of her career in public service, including as Counsel to the Assistant Attorney General for National Security; Senior Associate General Counsel at the Office of the Director of National Intelligence; Attorney Advisor at the Department of Justice, where she practiced before the Foreign Intelligence Surveillance Court; and Special Assistant United States Attorney.